High Court Debates Protection Of Wildlife

The Supreme Court Monday took up a case that could decide the future of the powerful and controversial Endangered Species Act, hearing arguments over whether the government can prevent development on private land to protect animal habitats.

The case, Babbitt v. Sweet Home Chapter, could produce the most significant Supreme Court ruling on an environmental issue in almost two decades.

The chief antagonists in the dispute are the timber industry, which has millions of acres of forests at stake, and the federal government, which faces the loss of its prime method for protecting endangered and threatened species.

Advocates on both sides say the Sweet Home case is a critical test for the 1973 Endangered Species Act.

The key question is whether the act prohibits harm not only to actual wildlife, but also to their habitat, and that issue produced signs Monday of sharp disagreements on the nation’s highest court.

The act makes it a crime to “take” an endangered species and broadly defines “take” to include “harass, harm … shoot” and other actions against animals. But, an Interior Department regulation says the word “harm” covers significant changes in habitat, and the act has been enforced as if destroying an animal’s home was same the same as killing the animal itself.

Justice Antonin Scalia argued that a person “takes” an animal when he hunts. He said the law was intended to penalize people who harm animals, not their habitat in the forests. The outcry over the spotted owl, he said, seemed to be “based on that notion that people who harvest trees are taking owls.” He called that interpretation of the law “weird.”

But Justice Stephen G. Breyer, who reads statutes more broadly than Scalia, said he believed the legislation could only be read to include habitat in the word “harm.”

The rest of the justices appeared closely divided.

The case began in 1991 when timber companies sued the Interior Department, challenging its plans to limit development on private lands to protect the nests of northern spotted owl and the red-cockaded woodpecker.

A consortium of logging interests, the Sweet Home Chapter of Communities for a Great Oregon, says the agency has taken the law further than Congress wanted.

The District of Columbia Circuit Court of Appeals initially upheld the use of the statute to protect nests and other habitat. But then, after the Sweet Home Chapter won a rehearing, the appeals court reversed itself and said the regulation went beyond congressional authorization. It said the words such as harass and harm “contemplate the perpetrator’s direct application of force against the animal taken.”